Volume 72; 2020-2021 • Issue 1

Volume 72.1 Full Issue

It is my distinct privilege to welcome you to the first Issue of Volume 72 of the Federal Communications Law Journal, the nation’s premier communications law journal and the official journal of the Federal Communications Bar Association.

This Issue explores a breadth of diverse topics in the communications sector, including perennial constitutional questions, privacy and data protection, machine learning and artificial intelligence, competition law, and public safety. The Issue opens with an Article on privacy as a parameter of competition in merger reviews by Mark MacCarthy, a Senior Fellow at the Institute for Technology Law and Policy at Georgetown Law, Senior Policy Fellow at the Center for Business and Public Policy at Georgetown’s McDonough School of Business, senior fellow at the Future of Privacy Forum, and an adjunct faculty member in the Communication, Culture & Technology Program in the Graduate School at Georgetown University. After eschewing the neo-Brandeisian antitrust reform perspective, Professor MacCarthy concludes that traditional antitrust jurisprudence may consider privacy as an element of competition, though he cautions that such an approach would raise a number of considerations that would likely preclude competition law from being an effective vehicle to increase privacy protections.

In addition to this piece, this Issue contains four student Notes. In the first Note, Brian DeMocker examines the autonomous vehicle industry, arguing for federal legislation to regulate the handling of personal information and analyzing the financial industry’s Gramm-Leach-Bailey Act as a model.

In the second Note, Conor Kelly takes a hard look at the Carpenter v. United States decision, proposing a reconsideration of consent and privacy by applying the Carpenter blueprint to personal information collected by ride-hailing services.

In the third Note, Christine Kumar considers how the rise in public attention of videos capturing the implicit bias of whites mobilizing police force against Blacks overshadows the more pervasive use of machine learning technologies that likewise perpetuate systemic bias and proposes the scrutiny of such tools under a strict product liability framework and argues for data protection legislation to ensure transparency.

In the final note, John Bick advocates for narrowly tailored state legislation in light of the 2018 Restoring Internet Freedom Order aimed at protecting public health and safety.

The Journal is committed to providing its readership with substantive coverage of relevant topics in communications law, and we appreciate the continued support of contributors and readers alike. We welcome your feedback and submissions-any questions or comments about this Issue or future Issues may be directed to fclj@law.gwu.edu, and any submissions for publication consideration may be directed to fcljarticles@law.gwu.edu. This Issue and our archive are available at http://www.fclj.org.

Tawanna Lee

Editor-in-Chief

Articles

Privacy as a Parameter of Competition in Merger Reviews
By Mark MacCarthy

This Article describes how merger reviews under current competition law are able to treat privacy as a dimension of competition. It illustrates this possibility through an examination of the European Commission’s reviews of the Facebook/WhatsApp merger and the Microsoft/LinkedIn merger.

This Article examines the legal, factual and practical considerations that collectively amount to large and potentially insurmountable obstacles to this effort to improve privacy protection through merger review. These obstacles include the inability to apply or extend privacy law directly, the unresolved conceptual knots in clarifying the notion of privacy competition, the empirical difficulties in determining the existence and extent of privacy competition, and the requirement to show that any post-merger failure to satisfy privacy preferences results from a substantial lessening of competition, rather than from independent business judgements or the proper operation of competitive forces. This Article concludes that merger reviews are not likely to improve privacy very much. It would be better to turn to other aspects of antitrust law or to privacy law itself to vindicate privacy rights.

Notes

The Roads of the Future Require a Functioning P.A.V.E.R.: How Autonomous Vehicles are More Like Your Bank Than Your Browser, and Must be Regulated Accordingly
By Brian R. DeMocker

This Note argues that, just as the banking and financial industry is a “vital” industry due to its central and important role in society, the autonomous vehicle industry will be considered a “vital” industry in the coming years for the same reason. Because the banking and financial industry is subject to regulatory restrictions on the handling of users’ nonpublic personal information, which incentivizes increased use of the industry’s products and services, the autonomous vehicle industry should be subjected to similar data privacy regulations to incentivize usage of autonomous and connected vehicles, which are safer than conventional vehicles. This Note proposes federal legislation, which could be called the Privacy in Autonomous Vehicles and Enforcement Regulation (or “P.A.V.E.R.”), that closely mirrors (but improves upon) the financial industry’s Gramm-Leach-Bliley Act, which regulates banks’ and financial institutions’ handling of users’ nonpublic personal information.

Unpacking the Affirmative Act Distinction: An Analysis of the Applicability of Carpenter v. United States to Location Data Stored by Ride-Hailing Companies
By Conor Kelly

In Carpenter v. United States, the Supreme Court held that law enforcement obtaining access to personal location information collected by an individual’s cell phone and stored by that individual’s service provider constituted a search under the Fourth Amendment and so required a warrant to access. The Court emphasized the limited applicability of its holding to the precise facts involved. Despite this admonition, the potentially broader implications of the case have already been noted. What this Note argues is that the proper post- Carpenter test is highly fact-specific, necessarily so in light of the rapid advance of technology and the already apparent implications of that advancement for personal privacy. More specifically, it argues that under this view of the case, the holding of Carpenter should extend to an as-yet unconsidered context: ride-hailing services such as Uber and Lyft. Such an extension would fulfill what this Note considers the best reading of Carpenter-as a case that offers a path forward for the Court to reconsider the meaning of consent and privacy in the digital age.

The Automated Tipster: How Implicit Bias Turns Suspicion Algorithms into BBQ Beckys
By Christine Kumar

A rise in videos showing white people calling the cops on black people despite there being no actual crime demonstrates not only how blatant racism is still prevalent in the United States, but also how the police are mobilized by these biases. While these videos work to ‘name and shame’ those who wrongfully called the officers, that kind of attention is not paid when artificial intelligence technology used by the police operates with the same kind of biases. Automated Suspicion Algorithms (ASAs) identify suspicious individuals based on historical police records and other numerical information and then alert police departments when these individuals meet a certain level of suspicion. Although in theory ASAs would offer more accurate results since they’re based on data, implicit bias still permeates these algorithms, but without any of the scrutiny that a BBQ Becky would receive. This note discusses how these algorithms should be scrutinized, first within the ambit of the Fourth Amendment and then under a strict product liability scheme in order to ensure that both the government and the software developers are held accountable for the creation and employment of these algorithms. Given how police brutality and violence continues to plague the criminal justice system, racial biases within the police context need to be suppressed not perpetuated, and thus any new technology used by the police should be properly scrutinized for racial biases.

Public Safety, Preemption, and the Dormant Commerce Clause: A Narrow Solution for States Concerned with the 2018 Restoring Internet Freedom Order’s Preemption Clause
By John Bick

This Note examines the important role Internet service providers have come to play in public health and safety, and considers regulatory steps state lawmakers can take to ensure consistent and un-degraded internet content delivery to state public health and safety entities in light of the 2018 Restoring Internet Freedom Order (the 2018 Order). It focuses on crafting a state law that is able to avoid being preempted by the 2018 Order, and that also survives dormant commerce clause challenges. Ultimately it concludes that states can enact narrowly tailored laws aimed at protecting state public health and safety entities because (1) the 2018 Order did not consider the effect its regulatory roll-back would have on public health and safety, (2) limited state laws would not interfere with the FCC’s deregulatory agenda, and (3) states have a traditional and important interest in protecting their citizens.